Case Number: BC616667 Hearing Date: June 12, 2018 Dept: 4

MOVING PARTY: Defendants FNC Inc., et al.

RESPONDING PARTY: Elba Hernandez, et al.

Motion for Order Overruling Objections and Compelling Responses to Demand for Inspection and Production of Documents

The court considered the moving, opposition, and reply papers.

BACKGROUND

On April 21, 2016, plaintiffs Elba Hernandez, Christina Hernandez, and Elenilson Hernandez filed a complaint against defendants FNS, Inc., Jose Oquedo Trucking, Jose Oquedo, and Emilio Morales for survival action, loss of consortium, and wrongful death. Plaintiffs allege that on December 30, 2014, at approximately 3:00 a.m., Rafael Hernandez was operating his Freightliner Olympian truck on I-605. His truck was stopped in the number three lane behind other traffic, and behind an International truck owned by A & R Transportation. Defendant Morales was operating a Freightliner Century Class truck owned and operated by FNS, Jose Oquedo Trucking, and Jose Oquedo. While travelling at a speed in excess of 55 mph, Morales

fell asleep, causing him to lose control and to collide with Hernandez’s truck, and forced Hernandez’s truck to crash into the International Truck. Hernandez died on May 18, 2015 as a result of physical and mental injuries he sustained.

LEGAL STANDARD

If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. CCP §2031.210. Where there has been an objection to a CCP §2031.010 demand, the demanding party must seek an order compelling a response if the demanding party deems the objection to be “without merit or too general”. CCP §2031.300. Each demand in a set shall be separately set forth and designated “either by specifically describing each individual item or by reasonably particularizing each category of item”. CCP §2031.030. A party is not required to produce materials describing generalized broad categories of materials, as the documents or materials must be reasonably particularized in relation to the manner in which the producing party maintains such records. The court does not allow parties to seek “fishing expeditions”. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355. The practice of “fishing” during discovery by providing insufficient identification of the requested information to acquaint the other party with the nature of the information desired, attempting to place the burden and cost of supplying information equally available to both solely upon the adversary, or placing more burden upon the adversary than the value of the information warranted is improper. Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal. App.4th 216, 225. Prior to bringing a motion to compel discovery, the parties are required to meet and confer, and the moving party

must show a reasonable and good faith attempt to resolve the discovery disputes. CCP §§2031.310; 2016.040.

The court shall impose monetary sanctions against a party who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP §2031.310. The court is authorized to impose sanctions on any party that “misuses” the discovery process. CCP §2023.010. These sanctions may be payment of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of” the “misuse” of the discovery process. CCP §2023.030.

DISCUSSION

On March 8, 2018, defendants served a Demand for Inspection of computers and other personal digital assistants to plaintiffs. The demand specified that plaintiffs permit full inspection of any personal computing devices, owned, controlled or used by the decedent and plaintiffs, stored, located and/or used at 8855 Roslyndale Ave., Arleta, California 91331 for sampling and testing by a forensic expert. The date noticed for production was April 10, 2018.

On April 2, 2018, plaintiffs served a response objecting to the demand on the grounds that the demand is overbroad and unduly burdensome; vague, ambiguous, and uncertain as to the time periods and the electronic devices implicated; seeks to invade the attorney-client privilege, work product doctrine, and respondents’ and others’ right to privacy; seeks disclosure of information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; and fails to describe with reasonable particularity each item or category of items to be inspected.

The parties engaged in extensive meeting and conferring regarding the inspection, both over e-mail and telephonically. During the meet and confer process, plaintiffs suggested each of their respective ESI consultants communicate directly with one another to facilitate the process,

and further offered to provide information that contained key terms provided by defendants. Defendants countered by narrowing the scope of the discovery to only the decedent’s cellular phone and computer and narrowing the scope of time of usage from December 2013 to May 2015. Unable to come to agreement about the inspection of the devices, on May 11, 2018, defendant filed the herein motion.

Defendants request the production of decedent’s telephone and computer for inspection, testing, copying to disprove plaintiffs’ allegations that the decedent’s death was the result of an irresistible impulse and thus a direct and proximate result of the physical and mental injuries decedent allegedly sustained in the accident with defendants. Defendants request inspection to determine whether decedent had been planning or pre-meditating his suicide before the occurrence of the subject accident. Defendants further believe the information is relevant to furthering the defense by investigating the state of decedent’s mental health prior to and after the occurrence of the subject accident at issue.

In opposition, plaintiffs argue that the demand was procedurally defective because defendants noticed the production date for 33 days after service of the demand rather than the required 30 days plus 5 days for mailing required by CCP §§2031.030(c)(2) and 1013(a).

Plaintiffs also argue that the demand failed to designate the ESI to be inspected with sufficient particularity. Plaintiffs also reiterate their objections as stated above. Plaintiffs assert that if the court orders the production, the cost of culling the responsive documents should fall to the demanding party. See Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal. App. 4th 762.

In reply, defendants counter plaintiffs’ limitations to terms provided by defendants because providing specific phrases as requested by plaintiffs’ counsel would violate the attorney work product doctrine, because providing such detailed specific phrases would disclose information related to case strategy and attorney thought process in case handling. Defendants

further argue that the meet and confer process has limited the issue, and both the timeframe and scope have been narrowed to reasonable particularity.

The court finds plaintiff’s argument that the demand for the devices was procedurally defective is moot because plaintiff failed to raise it in plaintiff’s initial objections and the date has passed. In any event, the court has the power to grant leave to specify an earlier date with showing of good cause. The meet and confer efforts of both parties would establish good cause, and the court declines to deny the motion on procedural grounds.

The court finds that plaintiffs’ objection to the initial discovery demand has merit. The demand for any personal computing devices owned by the decedent and the plaintiffs is overly broad as to time and scope and violate plaintiffs’ privacy. The court may, however, limit the time and scope. The court finds that it would be reasonable to narrow the request to production of the decedent’s telephone and computer for inspection, sampling, and testing of said devices for the time period from December 2013 to May 2015.

Therefore, the motion is GRANTED IN PART.

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendants request that the court impose sanctions in the amount of $1,396.00 on plaintiffs.

The court finds that plaintiffs were substantially justified in their objections to the original discovery demand and in opposing the motion, and given that this order was granted

only in part, defendant’s request is DENIED. Plaintiffs’ request for monetary sanctions is also DENIED.

The court ORDERS:

Pursuant to CCP § 2031.300, plaintiffs Elba Hernandez, et al. are ordered (1) to produce to defendants FNS Inc., et al. the decedent’s telephone and computer for inspection, testing, copying, without search term limitations, within 20 days, and subject to a confidentiality order. The costs of production are to be borne by defendants.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 12, 2018

____________________________

Dennis J. Landin

Judge of the Superior Court